2022 Colombian Election Digest II
The latest news and developments in the Colombian electoral campaign, up to March 1, 2022.
The countdown continues to the Colombian congressional elections and three presidential primaries in less than two weeks! The second edition of my weekly digest brings the latest news from the campaign trail. If you haven’t already, you can read the first edition from last week.
This week’s digest is focused on one of the most important judicial decisions in recent Colombian history: the complete decriminalization of abortion.
Colombia decriminalizes abortion: the facts
On Monday February 21, the Constitutional Court voted 5–4 to decriminalize abortion up until the 24th week of pregnancy. After the 24th week, abortion will remain illegal except in the three cases previously established by the Court in 2006 — (a) risk to the mother’s life or health, (b) life-threatening fetal malformations, (c) in cases of rape, non-consensual artificial insemination or incest.
With this historic decision, Colombia joins Cuba, Uruguay, Argentina and parts of Mexico as the few countries in Latin America to have completely decriminalized abortion (Guyana legalized it in the 1990s, and the Mexican Supreme Court decriminalized it nationwide in 2021 but is pending implementation at the state level).
The road to decriminalization has been very long. Between 1936 and 2006, abortion was illegal in all circumstances (except for the archaic grounds of aborto honoris causa, i.e. to save the honour of ‘honest women of good reputation’, until 1980). Under the current penal code, adopted in 2000, abortion remained illegal with no exceptions and punishable by one to three years imprisonment, increased to 16 to 54 months in 2004 (art. 122), for both the woman and the practitioner. The law retained attenuating circumstances which reduced the sentence by three-quarters if the pregnancy was the result of rape or non-consensual artificial insemination (art. 124).
In 1994, the Constitutional Court had ruled that abortion legislation was constitutional because the 1991 Constitution recognizes the inviolable right to life. In the mid-2000s, several lawyers and Women’s Link challenged the constitutionality of the abortion law, spurred by the case of a pregnant Pereira woman who was denied chemotherapy and radiotherapy for cervical cancer because it would have entailed the termination of her pregnancy.
In a landmark decision in 2006 (Sentence C-355 of 2006), the Constitutional Court partially decriminalized abortion in three cases — (a) risk to the mother’s life or health, (b) life-threatening fetal malformations, (c) in cases of rape, non-consensual artificial insemination or incest. The Court argued that a total ban on abortion implied the absolute supremacy of the rights of the fetus over those of the mother and was inconsistent with the principle of human dignity and the right to health.
Despite the decision, there are still major barriers and obstacles, including structural causes, hospitals denying legal abortions, arbitrary additional requirements, unfounded conscientious objections and medical professionals unjustifiably delaying the procedure. Many of these barriers have been identified by the Constitutional Court in subsequent rulings. Congress has never amended the penal code to take into account sentence C-355/06 and there has been little political will to improve access to safe and legal abortions.
In 2013, the Guttmacher Institute estimated that there were 400,000 induced abortions in 2008, and at most only a tenth of them were legal. About a third of women who undergo clandestine abortions experience complications, and an estimated 70 women die each year from complications.
The judicial prosecution of abortion has increased since 2006, with an average of 400 cases per year. Between 2005 and 2017, nearly 2,300 women, including 500 minors, were prosecuted — over 1,600 of those cases were still open as of 2017 and there have been 200–300 convictions. A recent study found that in over half of the cases ending in conviction, the complaint against the woman had been filed by healthcare workers. About a third of women investigated by the Fiscalía for abortion also appear as victims of another crime, particularly domestic violence.
In March 2020, the Constitutional Court voted 6–3 to refrain from taking a substantive decision following a challenge from a pro-life activist who sought to ban abortion in all cases. The Court did not take up a draft opinion from liberal magistrate Alejandro Linares proposing to decriminalize abortion until the 16th week, and took “the easy way out” while leaving the door open.
That same year, two legal challenges against article 122 of the penal code were filed with the Court, and the one which resulted in Monday’s decision came from Causa Justa, a movement made up of several different NGOs, activist groups and women’s rights groups. The vast majority of expert and citizen interventions in the cases (amicus curiae) were in favour of decriminalization. The Ministry of Health, following the Duque administration’s view, admitted that there were barriers, but argued that there was res judicata since sentence C-355/06.
Anticipation built up in late 2021. However, the vote counts were close and the issue became bogged down in a series of recusals. Alejandro Linares was recused after speaking to the media on the topic. With Linares’ recusal, the vote was tied at 4–4 and two alternate judges (conjuez) were elected (one in each case); the alternate judge in the Causa Justa challenge was Julio Andrés Ossa. Ossa’s vote was described as a complete incognito: he has a conservative Catholic education and has worked with conservative judges, but he has a more liberal view on life, the law and individual rights.
After several delays, the Constitutional Court finally reached a decision on February 21. The vote was very close: 5 votes to 4, with the alternate judge Ossa being the deciding vote in favour. The other four magistrates to vote in favour were Antonio José Lizarazo, Alberto Rojas, José Fernando Reyes and Diana Fajardo. The three men are usually liberal votes (the draft opinion adopted by the majority was by Lizarazo) while Fajardo, the only woman to vote in favour, is also liberal though her vote was less safe. The four votes against were Jorge Enrique Ibáñez, Cristina Pardo, Paola Meneses and Gloria Stella Ortíz. Pardo, Ibáñez and Meneses are the most conservative (or orthodox) members of the Court — Meneses, the newest member, is an old high school friend of President Iván Duque. Ortíz is more moderate and has defended the principles of legal certainty. A lot has been made of the fact the three of the four votes against were from women, while four of the five votes in favour were by men.
The Court’s majority opinion as explained by its communiqué is, broadly, as follows:
There is no res judicata (i.e. the precedent of C-355/06 does not apply) because there has been a change in the material meaning of the constitution (jurisprudence has evolved on issues like the right to health and violence against women) and the legal context.
The protection of prenatal life is a constitutional imperative but protection of prenatal life is incremental.
The criminalization of abortion severely affects fundamental constitutional rights, principles and values such as the right to health, reproductive rights and freedom of thought (individual decision to procreate and reproductive autonomy).
The criminalization of abortion is disproportionate and punitive, violating the ultima ratio principle of criminal law, the constitutional principles of human dignity and is discriminatory based on sex. There are more adequate and proportional policy/legislative means to protect life. Furthermore, criminalization does not effectively serve its intended purpose.
Criminalization of abortion disproportionately impacts vulnerable women, like irregular migrants, who face intersectional discrimination.
The Court agreed on an intermediate solution to protect both prenatal life and the rights violated by art. 122 of the penal code — thus allowing abortion up until the 24th week of pregnancy (at which point the fetus has a ~50% chance of survival). With a gestational limit at 24 weeks, Colombia now has one of the most permissive abortion frameworks in Latin America (Argentina is 14 weeks, Mexico City and other states are 12 weeks, Uruguay is 12 weeks, Cuba is 12 weeks) — and even in the world.
Finally, the Court exhorted Congress and the government to adopt, as soon as possible, public policies to avoid the lack of protection of pregnant women’s rights. Such policies, they say, would include clearly informing pregnant women of the options available to them, the removal of obstacles to exercising their rights including access to safe abortion, plans to prevent unwanted pregnancies, family planning, sexual education and support measures for expectant mothers including adoption. In other words, the Court is now handing the ball over to Congress, which has stood out in its inaction on this and other hot potato moral issues like LGBT+ rights and drug policy.
Colombia decriminalizes abortion: the reactions
Causa Justa and other feminist groups who had been pushing for this celebrated victory, although they had been pushing for complete decriminalization with no gestational limit and want to see abortion removed from criminal law. They are well aware that they now face a tough, if not tougher fight, in pushing Congress to do what it’s never wanted to do (regulate abortion rights) and break down barriers to abortion.
The Court’s decision is certain to be controversial — perhaps even more so during an intense election campaign. What kind of impact can it have on the campaign? Some might remember how the Inter-American Court’s decision to legalize same-sex marriage in Costa Rica led to a surge in support for Christian evangelical conservative candidate Fabricio Alvarado in the 2018 Costa Rican election. In Mexico, the decriminalization of abortion in 2007 by a left-wing administration in Mexico City led to a conservative backlash elsewhere, with many states adopting constitutional amendments protecting life from conception.
Opponents of this decision have said that an ‘activist’ Court overreach and went against the will of the majority. They might be correct: a multi-country poll on abortion by Ipsos in 2021 found that only 26% of Colombians supported allowing abortion in all cases, while 36% said abortion should be allowed in some cases like rape (similar to numbers in Mexico and Brazil).
However, public opinion on the issue is divided not as clear cut as some might assume (and a lot of the numbers you get depend on the questions asked). The same Ipsos poll found only 9% said abortion should never been permitted. A recent poll found that 41% agreed that abortion should be legal in all cases, while (in a separate question) 39% would support banning it entirely. Nearly half were opposed to women going to jail for getting an abortion. A poll for a pro-choice group in 2021 found mixed results: around 40% seem to be strongly opposed to abortion regardless.
Abortion is an issue that most politicians have preferred to desperately avoid. As mentioned, Congress has never acted on the issue, with bills (both seeking a more permissive or restrictive legislation) never going very far.
The Court’s decision was welcomed by presidential candidates on the left (Pacto Histórico) and centre (Centro Esperanza), while reactions were mixed on the right (Equipo por Colombia).
On the left, Francia Márquez, supported by feminist groups, had made clear her support for abortion rights and Causa Justa’s challenge even before the decision. However, Gustavo Petro has had a complicated stance on the issue: he has repeatedly said he is not “pro-abortion” and that he wants “zero abortions”, although he has opposed its criminalization. After the decision, he congratulated the women who fought against the criminalization of abortion and that sexual education and freedoms are the best way to protect life. Petro knows that while the left is the most supportive of abortion rights, a lot of its potential voters are probably more uneasy about abortion. Evangelical leader Alfredo Saade, the odd man out in the Pacto for his socially conservative views, opposes abortion but says that he respects the Court’s decision.
All candidates of the Centro Esperanza supported the decision and said that it is a “big step forward”. Alejandro Gaviria, a committed social liberal who supported abortion rights as health minister (2012–2018), had supported the court challenge and submitted an amicus brief. He was among the first candidates to react, saying it was a triumph for women and public health. Other candidates like Sergio Fajardo and Juan Manuel Galán also expressed their support for the decision.
In the right-wing Equipo por Colombia coalition, reactions were mixed. The most conservative members of the coalition — David Barguil (Conservative), Fico Gutiérrez and Aydeé Lizarazo (Christian party MIRA) opposed the decision. In a video, Fico said 24 weeks is “excessive” because it is a fully formed baby at 6 months. Lizarazo unsurprisingly said she disagrees with the decision but only said that the actual reach of the decision must be analyzed. Conservative candidate David Barguil had perhaps the strongest reaction, saying that the Court’s decision is painful and promises that, if elected, he will support a constitutional reform to prohibit the decriminalization of abortion (while saying he supports the three cases of 2006).
On the other hand, Enrique Peñalosa, who is somewhat more liberal, didn’t enthusiastically welcome the decision but said that incarcerating those who have abortions doesn’t prevent abortion and mainly harms poor women, so his government would implement programs to prevent unwanted pregnancies. Alex Char, whose views on most issues remain an incognito, surprised some with his reaction: he said that the Court took a transcendental decision and that it is necessary to provide support to women and families with fewer economic opportunities.
Outside of coalitions, uribista candidate Óscar Iván Zuluaga said that, as a “defender of life”, the Court’s decision deeply hurt him and said it “substituted Congress” on a sensitive issue. President Iván Duque’s reaction was similar. The President said that “five people” cannot make a decision on something as “atrocious as allowing a life to be interrupted” and said it will allow for abortion to become a contraceptive method. Duque also said that he believes that there was res judicata on the issue. Álvaro Uribe also opposed the ruling.
Anti-abortion groups will try to revert this decision. Besides Barguil’s promise to amend the constitution through Congress if elected, the idea that has received the most support is a citizen-initiated constitutional referendum, which would presumably seek to ban abortion by putting that in the constitution and/or defining life as beginning from conception. The idea of a referendum has been supported by Álvaro Uribe, uribista senators María del Rosario “Charro” Guerra and Paola Holguín (who is supporting anti-abortion protests) and the Conservative president of the Senate Juan Diego Gómez. Liberal senatorial candidate Sara Castellanos, the daughter of the founders of the MCI evangelical church, has already registered a committee to organize a “referendum for life”.
President Duque has also said that he likes the idea, but rightly expressed concerns about the difficulty of the process. Indeed, organizing such a referendum is long and complicated with a lot of unpredictable obstacles. To be considered, a citizen-initiated constitutional referendum needs to collect signatures from at least 5% of the number of registered voters (about 1.9 million signatures now) within 6 months. Once signatures are certified, Congress must pass a law convening the referendum, and the law is subject to a priori review by the Constitutional Court before it is put to a vote — in theory only for procedural defects, although the Court’s “substitution of the constitution” jurisprudence means it tends to go beyond just technicalities.
Assuming it makes it to an actual vote, the referendum a stand-alone event (not combined with any other election) and there is a turnout quorum of 25%. The only referendum to ever make it to the ballot was Álvaro Uribe’s 2003 15-question political reforms referendum (which was a government initiative rather than citizen-initiated) and only one question met the 25% turnout quorum. Therefore, a referendum needs to jump through many hoops: certification of signatures, approval of the financial statements of the committee behind the initiative, approval by both houses of Congress, constitutional review and overcoming a turnout quorum.
Therefore, it’s no surprise that referendums are often used by politicians to get free publicity and mobilize their supporters. In Sara Castellanos’ case, it’s obvious that she’s doing this to score some political points for herself just two weeks before the elections.
The centre implodes
At this point, the news should be when the centrist Centro Esperanza coalition doesn’t fight amongst themselves…
This latest fight features, unsurprisingly, Alejandro Gaviria, whose pragmatism and willingness to accept support from ‘traditional politicians’ has always been a major sticking point in the coalition — it was what led to Íngrid Betancourt’s exit in January.
As I reported in my first digest, Gaviria recently met with Vargas Lleras and former President and Liberal Party boss César Gaviria. In an interview in El Espectador, Alejandro Gaviria said that he would accept César Gaviria’s support if he won the primary — on the basis of an agreement on shared ideas and certain autonomy in running his campaign. He also said that if he didn’t accept César Gaviria, other candidates would: he’s partly right about that, as Gustavo Petro is also actively seeking to woo the former president over to his side. However, César Gaviria is largely persona non grata for the other members of the coalition, and Alejandro Gaviria was only accepted in the coalition in November 2021 after he had been repudiated by César Gaviria.
On Feb. 23, outgoing (ex-CR) senator Rodrigo Lara joined Alejandro Gaviria’s campaign as his campaign manager (jefe de debate). Alejandro Gaviria’s campaign team includes his wife, Carolina Soto (former member of the board of directors of the central bank), as well as retiring Liberal senator Horacio José Serpa (son of the late Liberal politician Horacio Serpa) and Liberal representative Juan Carlos Losada.
Rodrigo Lara, the son of Nuevo Liberalismo politician and justice minister Rodrigo Lara Bonilla (assassinated by the Medellín Cartel in 1984), wanted to be a presidential pre-candidate for Nuevo Liberalismo but Galán had no interest in letting that happen, and Lara was very critical of Juan Manuel Galán and the ‘nepotistic’ way in which he is running the party (he is not alone in saying that). Besides the tensions with Galán, Lara is also disliked by others in the centrist coalition for his very recent membership in Cambio Radical and some remember how, as president of the House of Representatives in 2017, he helped sink the political reform that was part of the peace agreement with the FARC (at the time, he claimed that it favoured the political interests of Fajardo and Juan Fernando Cristo).
By meeting with César Gaviria, allying with Lara and accepting the support of traditional politicians (who campaign for him in very ‘traditional’ ways, as Cuestion Pública found out), many of his ‘colleagues’ now felt that Alejandro Gaviria had gone too far and broken his word with the coalition.
Jorge Enrique Robledo (Dignidad), on February 24, said that Gaviria broke the coalition agreement. He said that Gaviria clearly didn’t act in good faith when he signed the coalition agreement at the foundational ‘conclave’ last November, because he has accepted and welcomed the support of politicians and parties who supported Iván Duque and his government — which was agreed upon as the unacceptable ‘red line’ for the coalition. Robledo concluded that since Gaviria didn’t keep his word and destroyed the trust on which the coalition was based, he himself would no longer abide to the commitments made. Therefore, if Gaviria wins the primary, Robledo would not support him or campaign for him. He later went even further, saying that he feels that Gaviria would cause “immense damage” to Colombia if elected and that he prefers not to imagine what he’d do to win because of his “desperate ambition”.
It’s no surprise that Robledo would be the one to break things off with Gaviria: the two men couldn’t be more different in their political philosophies. Robledo is a veteran left-winger, who has been in opposition throughout his political life and built his career denouncing neoliberalism and free trade deals with the United States. Gaviria is an urbane liberal economist/academic, a technocratic former cabinet minister, and the only one in the coalition to clearly espouse classical liberal economic views. Robledo, as an opposition senator, was very critical of Gaviria as health minister. Robledo clearly needed to swallow a bitter pill in reluctantly accepting to have Gaviria join the coalition last year…
Sergio Fajardo skirted around the issue, but has also kind of put into question his support for Gaviria if he were to win the primary. Fajardo said his support would depend on whether the word of the coalition agreement is fulfilled… Recently, Alejandro Gaviria has gone on the offensive against Fajardo, so it’s likely that there’s no love lost between the two (Fajardo and César Gaviria also loathe one another, since 2018). Carlos Amaya and Juan Manuel Galán have avoided being dragged into this fight so far.
Alejandro Gaviria says he has a “clear conscience”, but he has criticized the “hypocrisy” of some of his colleagues. He rejects the “dogmatism” that he says he’s faced because of his meetings with certain politicians and says that if a presidential candidate can’t have conversations with other politicians then “we’re screwed”.
The Centro Esperanza therefore now only exists on paper — a coalition list for the Senate and as a presidential primary where it’s no longer clear that the losers will support the winner. As its critics predicted, it melted away under the weight of its contradictions and a battle of egos.
Other news
The ELN guerrilla led a 72-hour ‘armed strike’ (paro armado), essentially an armed show of force by the guerrilla group, between Feb. 23 and 26. Indepaz reported 65 actions of the ELN during the strike including the assasination of a social leader, detonating a bridge, clashes, blockades, armed patrols, mobility restrictions, vehicles incinerated and attacks on infrastructure. Most actions took place in Norte de Santander, Cauca, Narinõ, Cesar, Chocó, Arauca and Santander, departments where the ELN has a strong armed presence. The ELN’s paro armado highlights the complete failure of the government’s security policy, especially in rural areas. The government couldn’t even keep a consistent message: the interior minister Daniel Palacios denied that there was a paro armado, while defence minister Diego Molano implied that there was. And the government seemed much more interesting in making some silly political points out of a serious public order crisis: Duque asked the ELN who they were campaigning for.
Presidential candidate Alex Char ran into far-right uribista senator María Fernanda Cabal at a restaurant in Bogotá and told her that he needs her support. La Silla Vacía revealed that Char, through an emissary, asked her to be his running-mate, which mostly shows that Char’s campaign doesn’t know the law because that’d be illegal (because she’s from another party). But it’s also a surprising twist: Char has mostly claimed that he is neither right-wing nor left-wing, and focused on ‘solutions’ or ‘building’ (and he was the one who rejected Zuluaga’s participation in the centre-right coalition), whereas Cabal represents the hardline radical right faction of uribismo (which is unhappy with Duque and Zuluaga).
On February 28, Gustavo Petro finally met with Liberal boss César Gaviria. Petro has spent months wooing César Gaviria and the Liberal Party, with repeated appeals to the Liberal Party’s symbolism, history and old left-wing values. What has come out of the meeting is that César Gaviria will decide on a presidential candidate after March 13. Even without a presidential candidate, César Gavira’s ‘wait and see’ strategy of playing all sides has been quite a success for him, raising his value quite a bit. What remains to be seen is how the Liberals do on March 13, whether or not Alejandro Gaviria wins the centrist primary (which would throw a wrench in Petro’s plans to get the Liberal leader’s endorsement) and how much sway César Gaviria has over his party once he endorses someone. If Petro walks away with César Gaviria’s support after March 13, it will be a huge boon for him.
In a new interview in El Tiempo, María Fernanda Cabal criticizes Fico Gutiérrez — often said to be uribismo’s Plan B if Zuluaga fails — saying that she fears he’d be a Duque 2.0 (and Cabal has been quite frank in her tough criticisms of her own president). She also claims that Fico is Duque/the government’s candidate and that Duque only used Zuluaga to defeat her in the CD presidential candidate selection process last year…
Russia’s horrific invasion of Ukraine is a distant issue in Colombia, but has interesting regional effects: Colombia is traditionally the United States’ most consistently loyal and strongest ally in Latin America (it is also NATO’s first and only global partner in South America, since 2017), and Colombia usually follows with US/Western foreign policy direction in global crises, while the Maduro regime in neighbouring Venezuela is Russia’s strongest ally in Latin America. Unsurprisingly, President Iván Duque condemned the Russian invasion of Ukraine and says Colombia is on alert given Russia’s military cooperation with Venezuela. There was a rumour from Cambio magazine claiming that the Colombian defence ministry was preparing plans to send Colombian troops to Ukraine, an outlandish and unrealistic possibility that the government quickly denied.
The Russian invasion of Ukraine comes amid continued tensions between Colombia and Venezuela, and the utter failure of Duque’s main foreign policy objective (the removal of the Maduro regime). Relations between Colombia and Russia have also gradually worsened as a result of Duque’s anti-Maduro foreign policy: in December 2020, two Russian spies at the Russian embassy in Colombia were expelled by the government (Russia retaliated by expelling two Colombian diplomats in Moscow), and just in February defence minister Diego Molano caused a firestorm by claiming that he had evidence of Russian logistical and technical military support to the Venezuelan military on the border with Colombia. Russia vehemently denied Molano’s claims.
The invasion of Ukrainian is unlikely to be a major issue in the campaign, but reactions show potential foreign policy differences between candidates. Most candidates condemned the invasion. The Centro Esperanza put out a joint statement condemning the invasion and saying that the government’s priority should be the evacuation of Colombian citizens. However, Jorge Enrique Robledo says that while he supports peace and a diplomatic solution, he mostly blamed the conflict on Ukraine wanting to join NATO. Candidates on the right used the issue to draw connections to domestic/regional issues, namely drawing connections between Russia and Maduro and implying . Álvaro Uribe said that conflict shows that Colombia needs to defend itself alone and the best defence is “not electing the coalition between narco-terrorism and and the populist left”. Fico Gutiérrez said that rejecting the Russian invasion is also a rejection of “whatever possible interference in Colombia through Venezuela and allies of the Colombian armed, populist and radical left”, whatever that means. Perhaps the most interesting reaction to the conflict is from Gustavo Petro, who has more or less said that he doesn’t care much and that Colombia’s preoccupation should be its own internal problems and that it can’t help anyone. On Twitter he has said that the war is a ‘war for gas’ and that Europe is strangled by fossil fuels, adding that Latin America at peace can take advantage of the situation to grow. He also criticized those who’d like to reproduce the conflict in South America. Petro’s reaction suggests that, if elected, he’d likely reorient Colombian foreign policy away from its traditional close ties (some would say ‘subordination’) to US foreign policy and favour a more neutral, non-aligned policy generically favouring ‘peace’ and rejecting intervention in foreign crises — similar to AMLO’s foreign policy in Mexico.
Thanks for reading! See you next week!
